Casino developers' ad campaign misleading, CNE head says

SUNNY DHILLON

The Globe and Mail

Last updated Tuesday, Mar. 12 2013, 10:33 PM EDT

Renderings of MGM’s initial plans for a casino at Exhibition Place in Toronto.

The Canadian National Exhibition has demanded MGM and Cadillac Fairview stop
using images of the annual summer fair in their joint Toronto casino proposal,
arguing the unauthorized use creates the “misleading” impression the CNE
supports a project that would bring about its “disintegration.”

Brian Ashton, president of the Canadian National Exhibition Association,
issued a strongly worded letter to Nevada-based MGM Resorts International and
Toronto-based developer Cadillac Fairview Corp. on Tuesday.

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Mr. Ashton wrote that the images of the Princes’ Gates and the letters CNE
are official marks of the association and their use on MGM-Cadillac Fairview’s
website and in newspaper advertisements is an infringement.

“It concerns the CNEA that the unauthorized use of its images and official
marks by MGM/Cadillac Fairview will mislead the public into the mistaken belief
that the CNEA is actually part of your proposal or that, at a minimum, the CNEA
supports the proposal,” the letter reads.

Mr. Ashton went on to take issue with the claim that MGM and Cadillac
Fairview “offered to partner with the CNE to enhance and improve the annual fair
experience.”

He said no offer was made nor accepted and “to imply otherwise is misleading
on your part.”

Mr. Ashton, in an interview, said the images prompted one councillor to ask
him whether the CNE was in favour of the project.

“I even received a communication from a member of council who asked me over
the weekend, after seeing the ads: ‘Are you supporting the MGM proposal?’ That
kind of reinforced my concern,” he said.

MGM and Cadillac Fairview last week unveiled their vision for a
three-million-square-foot casino resort at Exhibition Place that would include a
1,200-room hotel and a shopping mall. The project would be expected to cost
between $3-billion and $4-billion.

Alan Feldman, MGM vice-president of public affairs, issued a statement in
response to Mr. Ashton’s letter, although it did not indicate whether MGM and
Cadillac Fairview would stop using the images.

“MGM Resorts International and the Cadillac Fairview Corporation Limited have
received a letter from CNEA President Brian Ashton regarding our vision to
develop an Integrated Resort at Exhibition Place,” the statement read. “Both MGM
and Cadillac Fairview will carefully review its contents and respond if
necessary.”

Mr. Feldman’s statement went on to say MGM and Cadillac Fairview’s vision is
subject to the city’s approval and the companies would “work with all
stakeholders to preserve and enhance the existing uses.”

Mr. Ashton’s letter concluded by saying CNEA had consulted legal counsel and
could take further action “should it become necessary.”

Whether such a court case would be successful is unclear.

Julie MacDonell-Stewart, a lawyer and co-founder of The Trade-mark Shop, said
official marks – those adopted and used by public authorities – have received
greater protection from the courts.

“It seems a stretch to argue that MGM Toronto and Cadillac Fairview ‘adopted’
and ‘used’ the official marks of the CNEA to enhance their own business
ventures,” she wrote in an e-mail. “… They’ve simply depicted the CNE in
materials related to the casino. That said, courts have found that the
protection given to official marks is much wider than that given to registered
trademarks.”

Ms. MacDonell-Stewart said the cease-and-desist demand is not a completely
frivolous one.

Mark Hayes, managing director with law firm Heydary Hayes PC, said some of
CNEA’s claims seem to be quite “aggressive” based on existing case law. He said
it is questionable whether the instances referred to in the letter would be an
infringing use.

City councillors had been expected to vote on the casino issue next month,
but it was announced last week that the vote would be delayed until a staff
report is finalized. An exact date has not been set.

Paul Godfrey, Ontario Lottery and Gaming Corp. chairman, told The Globe and
Mail this week that a “yes” vote from council would only be a first step. He
said the city would be offered a chance to revisit the issue in about a year,
once an operator with a specific plan was selected.

Executives with Las Vegas Sands Corp., Caesars Windsor, and the Bellagio Las
Vegas, which is owned by MGM, were in Toronto on Tuesday to talk to
postsecondary students about job opportunities in the casino resort
industry.